The Advocate, Vol. 19, No. 6 (November 1997)Crime Control and the
Death Penalty

The execution of Harold McQueen
on July 1, 1997 has revived the debate in Kentucky about the use of capital
punishment. Much of that debate centers around issues of morality, ethics,
and the appropriateness of vengeance as a matter of state policy. What
is often curiously absent from the death penalty debate is any discussion
of the enormous volume of social science research on the subject. The death
penalty is more than a matter of opinion. There are established, well-documented
facts which are beyond refutation, but which are usually ignored in both
public discourse and in official decisionmaking related to capital punishment.

The simple fact is that no
issue has been more thoroughly researched and evaluated, in all of criminal
justice, than capital punishment. Those of us in criminology and criminal
justice are not certain of very many things regarding crime and its control
in our society, but we can be absolutely certain, to a level of scientific
proof that far exceeds the standard of proof required in the criminal courts,
that the death penalty, as presently constructed and administered is very
bad policy. This is not a matter of differing opinions or interpretations,
it is a matter of clear, irrefutable, undebatable scientific truth established
over half a century and involving dozens of studies. It is rare in criminology
to find virtually every researcher and every study in agreement, but in
this case they are. In studies using entirely different methodologies,
at different times, in different places, constructing research questions
in different ways, the facts are immutable and unchanging. The scientifically
proven facts of the death penalty are clear.

The Death Penalty and
General Deterrence

The key argument in support
of capital punishment has traditionally been that no offender wants to
die, therefore the threat of execution will deter homicide in society at
large. On its face this argument seems to be simple common sense. Of course,
like many folk myths and much common sense, it is less sensible than it
is common. The facts are very simple. No credible study of capital punishment
in the United States has ever found a deterrent effect.

In studies of contiguous
states, at least one with the death penalty and at least one without, research
has shown that there is no deterrent impact from capital punishment. Because
these states are selected and matched on the basis of geographical location,
and similar social demographic characteristics, we would expect there to
be few confounding factors in measuring the impact of capital punishment.
If there is a deterrent, death penalty states should have a markedly lower
homicide rate. They do not. Homicide rates in states without the death
penalty are no higher, and, in many cases, are lower, than in neighboring
states with the death penalty (Sellin, 1980).

Similarly in studies of states
where the death penalty was adopted or reinstated after having been abolished,
research has once again failed to show any deterrent effect. The adoption
or reinstatement of the death penalty does nothing to reduce the homicide
rate (Sellin, 1980; Zeisel, 1977).

Comparative data also fails
to demonstrate any deterrent value to the death penalty. The United States
is the only Western democracy that retains the death penalty. The United
States also has, far and away, the highest homicide rate in the industrialized
world. Far from a deterrent effect, the death penalty would appear to have
an aggravating effect on homicide rates (Kappeler, Blumberg, and Potter,
1996: 310).

The scientific conclusion
is clear. The death penalty does not deter homicide. No study has
ever found a deterrent effect, no matter how skewed the research question
was in favor the death penalty. It's alleged deterrent value is refuted
by everything we know about violent crime. The death penalty, if it is
to deter, must be a conscious part of a cost-benefit equation in the perpetrator's
mind. There are very few murders that involve that level of rationality
or consciousness of the outcomes. Most murders are (1) committed under
the influence of drugs or alcohol; (2) committed by people with severe
personality disorders; (3) committed during periods of extreme rage and
anger; or (4) committed as a result of intense fear. None of these states
of mind lend itself to the calm reflection required for a deterrent effect.

The Death Penalty and
Specific Deterrence

Proponents of the death penalty
also argue that capital punishment provides a specific deterrent which
controls individuals who have already been identified as dangerous criminal
actors. According to this argument the presence of death penalty ought
to reduce a wide variety of criminal acts. Does it?

Certainly, if the death penalty
deters homicide then it should prevent incarcerated people from killing
again and reduce the number of homicides among prisoners. The fact of the
matter is that over 90% of all prisoner homicides, killings of other prisoners
or correctional officers, occur in states with capital punishment (Sellin,
1980).

A major death penalty study
by Bailey (1991) also refutes the idea that capital punishment has any
impact on other felonies. Despite the fact that Bailey measured the impact
of capital punishment in three distinct and different ways he could find
no evidence that the death penalty had any effect on index felony crime
rates. Bailey concluded that "this pattern holds for the traditional targeted
offense of murder, the personal crimes of negligent manslaughter, rape,
assault and robbery, as well as the property crimes of burglary, grand
larceny, and vehicle theft. In other words, there is no evidence ... that
residents of death penalty jurisdictions are afforded an added measure
of protection against serious crimes by executions" (Bailey, 1991: 35).

Finally, it has been argued
that capital punishment specifically protects law enforcement officers
by deterring assaults and killings of police. There have been five major
studies addressing the question of whether capital punishment protects
police officers. In no case did the death penalty provide any deterrent
to killing law enforcement officers, nor did it reduce the rate of assaults
on police (Bailey and Peterson, 1987; Bailey. 1982; Sellin, 1980, Cardarelli,
1968; Hunter and Wood, 1994).

Once again the scientific
evidence is clear, the death penalty does not deter other crimes
in any way. It has no deterrent impact on other felonies, it has no deterrent
impact on crimes against law enforcement officers, it has no deterrent
impact on drug crimes, and it has no deterrent impact on violent crimes.
In fact, the death penalty is more likely to endanger the lives of police
who investigate crime and pursue fugitives, and endanger the lives of witnesses
who may provide evidence necessary for conviction. The reason is obvious,
preventing capture and conviction becomes far more pressing a matter in
death penalty states.

The Death Penalty and
Incapacitation

The frequently advanced argument
the that death penalty protects society by incapacitating violent criminals
and thereby preventing further offenses is also weak. Obviously, an executed
murderer is unlikely to recidivate, but so is a murderer in prison for
life without parole. The facts, however, indicate that even if not executed
and even if not incarcerated for life, it is unlikely that a person convicted
of homicide will kill again, or even commit an additional serious offense.

A massive study which tracked
the post-release behavior of 6,835 male prisoners serving sentences for
homicide offenses who were paroled from state institutions, found that
only 4.5% of them were subsequently convicted of another crime and only
0.31% committed another homicide (Sellin, 1980). This means that for every
323 executions we might prevent one additional murder. Other studies
find essentially the same results. For example a study of prisoners whose
sentences were commuted as a result of the Furman decision (Marquart
and Sorenson, 1988), found that 75 percent of these inmates committed no
serious infractions of prison rules, and none of these inmates were involved
in a prison homicide. Some of the Furman commuted inmates were paroled
back into the community. Only 14 percent of them committed a new crime,
and only one committed an additional homicide.

Vito, Koester and Wilson
(1991) also analyzed the behavior of inmates removed from death row as
a result of the Furman decision. There study found that of those
inmates eventually paroled only 4.5% committed another violent crime and
only 1.6 percent committed another homicide. The authors conclude "that
societal protection from convicted capital murderers is not greatly enhanced
by the death penalty" (Vito et al., 1991: 96).

Even in states with capital
punishment the overwhelming majority of people convicted of homicide receive
a prison sentence, and many of them will eventually be released on parole.
A review of the data on these released murderers clearly reveal that they
have the lowest recidivism rates of any felons. In addition, paroled murderers
in states without the death penalty had a much lower rate of recidivism
than parolees released in states with the death penalty (Bedau, 1982).

The death penalty does
not protect society from further crimes of violence by murderers in any
significant way. Once again the incapacitation argument is grounded
in fundamental ignorance concerning the characteristics of violent crimes
in general and murder in particular. But while there is no scientific evidence
of societal protection from the death penalty, there is considerable scientific
evidence that the death penalty stimulates violence, crime and murder.

The Brutalization Effect
of the Death Penalty

So, neither incapacitation
nor deterrence theories are supported by the social science research on
capital punishment. In most public policy debates the burden of proof is
on those advocating a measure. If that were the case here death penalty
adherents would fail miserably. But the fact is that lack of deterrence
and a failure to protect society are the least of the problems with capital
punishment. In fact, the death penalty produces serious crime problems
and social problems of its own. Probably most important of these is the
fact that death penalty not only doesnít deter murder, it encourages people
to kill.

Studies of capital punishment
have consistently shown that homicide actually increases in the
time period surrounding an execution. Social scientists refer to this as
the "brutalization effect." Execution stimulates homicides in three
ways: (1) executions desensitize the public to the immorality of killing,
increasing the probability that some people will then decide to kill; (2)
the state legitimizes the notion that vengeance for past misdeeds is acceptable;
and (3) executions also have an imitation effect, where people actually
follow the example set by the state, after all, people feel if the government
can kill its enemies, so can they (Bowers and Pierce, 1980; King, 1978,
Forst. 1983).

The earliest and most important
study demonstrating a brutalization effect was conducted in Philadelphia
in 1935, by Robert Dann. Dann looked at five executions of convicted murderers
in different years. Dannís research found an average increase of 4.4 homicides
for each execution. Dannís research clearly demonstrated that rather than
having a deterrent impact, executions markedly increased the incidence
of homicide (Dann, 1935).

Another study by William
Graves in California also found a brutalization effect. Graves looked at
homicide records in Los Angeles, San Francisco, and Alameda counties in
order to determine whether there were fewer murders in the days following
an execution than in the days leading up to the event. As a comparative
measure, he examined the same days of the week for those periods in which
an execution did not occur. Graves reported that compared with weeks when
no death sentences were carried out, the number of murders actually increased
in the days prior to an execution and on the day of the execution itself.
Graves (1957: 137) concluded that persons contemplating homicide are "stimulated
by the stateís taking of life to act sooner." In addition, a reanalysis
of Gravesí data (Bowers et al., 1984: 284) concluded that "homicides
were higher in the weeks after than in the weeks before executions." Gravesí
research, therefore, clearly demonstrates a brutalization effect prior
to an execution and an even more pronounced one following an execution.

Another study (Bowers and
Pierce, 1980) found that executions in California and Pennsylvania encourage
crime and homicide. Each execution studied was followed by a two- to threefold
increase in the number of homicides the next month. Bowers and Pierce argue
there is a small group of people in society who have "reached a state of
Ďreadiness to kill,í" and have an intended victim in mind. The execution
itself, or coverage prior to the execution conveys to these people the
message that vengeance is justified. Brian Forst found the same effect
in his study of the deterrent impact of capital punishment between 1960
and 1970. He found no evidence that executions prevented crime. On the
other hand, Forst did find evidence that executions "provoked" homicides
(Forst, 1983).

One of the most compelling
and recent studies demonstrating the brutalization effect looked at a September
1990 execution in Oklahoma, the first execution in that state in twenty-five
years. The researchers monitored the homicide rate for three years following
that execution and found "an abrupt and lasting increase in the level of
stranger homicides," which on the average rose by one per month (Cochran
et al. 1994).

While not a direct test of
the brutalization effect it is, nonetheless, instructive to note that in
post-Furman period marking the reintroduction of capital punishment in
1983, about one-third of all executions in the United States have occurred
in Georgia and Louisiana, and in both states the murder rate has increased
markedly (UCR, 1983; UCR 1989). In fact, the highest murder rates in the
country are in the four states that have carried 70% of the post-Furman
executions, all of which have now achieved murder rates much higher than
the national average of 8.4 (Georgia, 11.7; Florida, 11.4; Louisiana, 11.6;
and Texas, 12.1) (Compare these to states with no executions since Furman:
Vermont 2.0; Maine, 3.1; Massachusetts, 3.5; Rhode Island, 4.1; Wisconsin,
3.0; Iowa, 1.7; Minnesota, 2.9; North Dakota, 1.8.) In fact, 36.9% of the
states with capital punishment have murder rates in excess of the national
average, while 90.9% of the states without a death penalty have murder
rates lower than the national average.

Once again the social science
research provides compelling evidence against the death penalty as public
policy. The death penalty does, invariably and without exception increase
the number of homicides in jurisdictions where it is applied. This
has been proven in Pennsylvania, California, Oklahoma and other jurisdictions.
While it is too early to make an absolute assessment, my viewing of news
reports since the McQueen death warrant was signed clearly indicates it
is having that impact in Kentucky, with an outbreak of killings in Louisville
and Lexington, as well as several other homicides across the commonwealth,
far in excess of expected averages.

The Administration of
the Death Penalty is Arbitrary and Capricious

In its 1972 Furman v.
Georgia decision, the Supreme Court struck down the death penalty as
arbitrary and capricious, with a significant potential for racial discrimination.
In the post-Furman era states have revised their death penalty statutes
in an attempt to reduce arbitrariness by "bifurcating" juries, specifying
aggravating and mitigating factors for jury consideration, and specifying
more clearly death penalty offenses. Has any of this reduced the arbitrariness
of the death penalty?

The research literature answers
this question with a resounding, NO! In the post-Furman era defendants
in capital cases are charged differently and treated differently for no
apparent or logical reason (Berk, et al., 1993; Gross and Mauro,
1989; Paternoster, 1991). Sometimes, defendants committing similar crimes
with similar criminal histories are charged with capital murder, sometimes
they are not. Some get the death penalty after convictions, some do not.
Even within the confines of the same state, operating under the same criminal
code, varying jurisdictions render varying results. The fact is that even
under "reformed" capital punishment statutes, the death penalty is more
like a state lottery than a considered act of justice. As one researcher
puts it: "... being sentenced to death is the result of a process that
may be no more rational than being struck by lightning" (Paternoster, 1991:
183).

Racism and the Death Penalty

The one aspect of the capital
punishment that is sure and certain is that it is blatantly racist. In
capital cases the lives of whites are valued far more than the lives of
black victims (Baldus et al., 1990; Paternoster, 1991; Radelet,
1981). Prosecutors are far more likely to seek the death penalty when the
victim is white than when the victim is black. In addition, juries are
far more likely to hand down death sentences when the victim is white.

On the other hand, considerable
evidence exists that black defendants are more likely to receive the death
penalty than white defendants. Between 1930 and 1966, African-Americans
represented 54 percent of all the people executed in the U.S. and 90 percent
of all the people executed for rape (Bureau of Justice Statistics, 1992:
684). When the case involves a black defendant and a white victim the prospects
of a capital prosecution are almost invariable (Baldus et al., 1990).
In fact, post-Furman research shows that African-American defendants
who kill whites have about a 25 percent probability of receiving the death
penalty, while whites who kill African-Americans have a zero percent probability
(Bowers and Pierce, 1980; Baldus, et al., 1990).

David Baldus and his associates
looked at 594 murder cases in the state of Georgia. They carefully controlled
for all legally relevant variables, such as the number of "aggravating
factors." They found that prosecutors sought the death penalty in 45 percent
of the cases with white victims but only 15 percent of the cases with black
victims. Furthermore, they determined that prosecutors sought the death
penalty in 58% of the cases with black defendants and white victims, but
only 15% of the cases with black defendants and black victims. Juries imposed
the penalty of death in 57% of the cases with white victims but only 42
percent of the cases with black victims. The researchers concluded that
race had a "potent influence" on both the likelihood that the state would
seek the death penalty and the likelihood that a jury would return a death
verdict (Baldus, et al., 1990: 185).

In a similar study of 300
capital murders in South Carolina involving aggravating felonies, Raymond
Paternoster (1984) found that in cases with white victims prosecutors were
two and one-half times more likely to seek death than in cases with black
victims. In cases with black offenders and white victims the state sought
the death penalty 49.5% of the time. In black offender-black victim cases
the state sought the death penalty only 11.3 percent of the time. In addition,
in cases with white victims prosecutors tended to seek the death penalty
with only one aggravating felony, while in cases with black victims they
sought the death penalty only in cases with several aggravating felonies,
thereby indicating that homicides against blacks had to far more vicious
and brutal in order to justify the death penalty. Paternoster concluded
that "victim-based racial discrimination is evident in prosecutorsí decisions
to seek the death penalty" (Paternoster, 1984: 471).

Adequate Representation
and Wrongful Conviction

The fact of the matter is
that virtually all defendants in death penalty cases are poor and unable
to afford private counsel. As a result they are represented by public defenders
or court-appointed counsel, who are often inexperienced and not well trained
in litigating a capital case. As a result, major evidentiary and procedural
issues donít get raised at trial. It is ironic that in the most complex
of criminal cases, defendants are usually represented by counsel least
equipped to handle complexities. The criminal justice system as a whole
discriminates by a factor of over 4-1 against defendants who must accept
the services of public defenders and court-appointed counsel (Blumberg,
1967). The fact of the matter is that the death penalty is awarded to the
lowest bidder time and time again. In addition, inadequate funds and resources
to gather evidence, interview witnesses, and pursue scientific evidence
handicap defendants in these cases. Similar problems plague the defendant
all the way through the appeals process (Coyle et al., 1990; Smith,
1995).

Lack of adequate legal representation,
prosecutorial and police misconduct, judicial and juror prejudice can all
combine to result in wrongful convictions, a far more common occurrence
that most people have been led to believe. The fact is that a minimum of
1 percent of all felony convictions are mistaken or wrongful convictions
(Huff et al., 1986). Research on the death penalty has demonstrated
over 350 "miscarriages of justice" since 1900. Including several in the
post-Furman period, where defendants were convicted of potentially
capital crimes even though they were innocent. Of these defendants, 139
received the death penalty and 23 were in fact executed (Bedau and Radelet,
1987; Radelet et al., 1992).

Conclusion

As a criminal justice scholar,
I am constrained to make my judgments on facts, not emotions, not popular
ignorance, not superstition and prejudice masquerading as religion. It
is my judgment that the death penalty is bad policy and is in fact criminogenic
in its social impact. That is also the judgment of almost all my colleagues
in Kentucky and in the nation as a whole. The American Society of Criminology,
an organization made up of the best researchers and scholars in the country,
has by a virtually unanimous vote condemned the death penalty. That judgment
is not based upon vague conceptions of morality, it is based on rigorous
evaluation of the state's two primary responsibilities: (1) to protect
the public health and safety; and (2) to provide equity, fairness and justice
to its citizens. The death penalty is anathema to both goals. It is the
worst kind of crime-control policy.

Gary Potter is a professor
of Police Studies at Eastern Kentucky University. He has published numerous
books and articles on organized crime, drugs and drug policy, white-collar
crime and corruption, and crime control policy.

Sources

Bailey, W. 1991. The general
prevention effect of capital punishment for non-capital felonies. In R.
Bohm (ed.) The Death Penalty in America: Current Research. Cincinnati,
OH: Anderson and the Academy of Criminal Justice Sciences.

Vito, G., P. Koester, and
D. Wilson. 1991. Return of the dead: An update on the state of Furman-commuted
death row inmates. In R. Bohm (ed.) The Death Penalty in America: Current
Research. Cincinnati, OH: Anderson and the Academy of Criminal Justice
Sciences.